New landlord here... After researching, I'm still struggling to understand the allowable late fee, 10-day notice, and eviction timeline for the state of North Carolina...
By law (in NC), you are not allowed to collect a late fee for rent until 5 days after rent is due.... is that correct?
On which day would I be allowed to actually mail/post/serve a 10-day notice to quit? The 2nd? (since rent is technically late on the 2nd?)
The day after rent is late, I plan to mail and email a 10-day notice to the tenant (or is email a bad idea? Do any of you email as well as mail? Or do you just post the 10-day notice on the tenant's door?)
NC basically has a 10 day grace period before you can file an eviction. If rent is due on the 1st, then you can file on the 11th if rent has not been collected in full. Even if it's partial rent, you can still evict.
You need to notify them that you are evicting. They may get asked in court if they were notified. Obviously paper is the best way, but our magistrate accepts any form or communication to the resident to notify them.
Do you have a lease? It's easiest and best to have a signed lease which will spell everything out. There is a standard lease agreement in NC that is used often, search for Form 410-T, Residential Rental Contract, it covers late fees (5% max) late date (due on 1st, late on 6th I believe) at which point you can file for eviction.
@Noureen A S.. I'm not knowledgeable on NC Laws. Suggest you google Landlord Tenant Laws and find the applicable rules.
In Texas, I would wait until after the so-called "Grace Period" if there is one in the lease. Probably don't have to, just personal preference and erring on the side of caution.
After "Grace Period" and I have decided to go for eviction, I really don't want any personal physical interaction with the Tenants, for obvious safety reasons.
I send a Termination Of Occupancy and Notice to Vacate to the Tenant in 3 ways. 1. Regular Mail. 2. Certified Mail, Return Receipt Requested. 3. Email and also text them if I have a contact number. Document all of these actions, and make copies to show to the Judge. Texas also allows me to post a Notice on the inside of the residential door, but as I said, I don't want any personal physical contact or interaction with the tenant.
In Texas, the Certified Mail, Return Receipt Requested Notification, is Prima Facie evidence of Notification regardless of whether the tenant received the Notification or chose to ignore the Notification.
According to our lease agreement we can send them after the “grace period.” For us, this is on the 6th of the month as our rents are considered late after the 5th.
NC basically has a 10 day grace period before you can file an eviction. If rent is due on the 1st, then you can file on the 11th if rent has not been collected in full. Even if it's partial rent, you can still evict.
You need to notify them that you are evicting. They may get asked in court if they were notified. Obviously paper is the best way, but our magistrate accepts any form or communication to the resident to notify them.
See also this BP topic: quick NC eviction filing primer. The NC General Statutes text is here. Regarding notice, mail and email are not recognized in civil process. I would use your county sheriff. The last time I filed, the cost was $25 plus $5 per defendant. The relevant sections in stat statute regarding process are NCGS 1A-1 Rule 4 and the landlord tenant act text, section NCGS 42-29. Some judges will accept proof of delivery if you present the signed receipt from certified mail, although I would never try this because you're depending on the defaulted tenant to receive the notice. Good luck with that.
Under 42-62(c). Parties note the two references (links) I listed above. Below is a portion of text from NCGS 1A-1 Rule 4:
"...Upon the filing of the complaint, summons shall be issued forthwith, and in any event within five days. The complaint and summons shall be delivered to some proper person for service. In this State, such proper person shall be the sheriff of the county where service is to be made or some other person duly authorized by law to serve summons..."
A defendant could challenge your mail and email as improper notice. They would win. I've seen judges continue cases because notice was mailed or delivered by the landlord. Always bring your lease and receipt from the sheriff's office to court, at least in Wake county. Depending on the judge, you may need them.
Note: The above post is for entertainment and not to be construed as legal advice.
In every jurisdiction I am aware of when rent is due on the 1st it is late a midnight that day. Many states have grace periods before a late fee is imposed. Landlords may also include reference to a grace period before a late fees is imposed in their lease. The grace period has nothing to do with when rent is legally late. The only variation in regards to when rent is legally late would be if their rent was due on other than the 1st or the tenant was required to pay other than monthly.
A pay or quit notice can/should be issued immediately when rent is legally considered late. No relation what so ever to a grace period.
It would be prudent for landlords to understand the law and their own lease language. In particular they should learn exactly what the "grace" period is in reference to. It has nothing to do with when to send notice to pay.
@Thomas S. Thanks for the explanation. That was conclusion I’d come to before making this thread but wasn’t totally sure...
I learned that NC landlords are simply not legally allowed to charge a late fee until after five days past due... So a pay/quit notice can be issued on the 2nd day rent is past due...
My experience shows that most tenants will pay after the 1st but before the 6th. Call it procrastination. If you send 10 day notices every time someone doesn't pay on the 1st you will be investing a lot of time, effort, paper and postage that isn't necessary as they will likely be paying by the grace period. I send the 10-day letter on the 6th and file for eviction 10-days after that if they still haven't paid.
When rent is due based on the lease. For leases with monthly rent, the 'standard' lease defaults to the 1st, but the law allows for any fixed time frame. See NCGS 42-46 about what 'late' is ("...five days or more late...") and what fees apply by statute.
Accepting partial payments in the context of eviction depends on the wording in your lease. NCGS 42-26(c) spells it out, in that the lease determines the applicability of partial payments. In court, several years ago, I've seen professional tenants game the system under the old wording. So, make sure your lease contains current. They would pay $10 to an office broker and get a receipt... enough to spoil eviction under the old rules.
The current 'standard' NC BAR (the Realtor form) lease contains the wording for the above, requiring no other actions from the landlord/manager. Older versions may or may not be consistent with current state law.
The standard text also states "Tenant shall pay the Rent, without notice, demand or deduction, to Landlord or as Landlord directs." Notice is implicit. You'll also see (in Wake county at least) when you look at the courthouse dockets that apartments that rigorously enforce collections will file on the 6th and have court dates roughly 10 days later, enough time for allowing the sheriff to serve the parties in default.
Professional landlords solve this problem by not allowing tenants to pay late. When a tenant pays late it is always the landlords fault for not enforcing their lease. Tenants know when rent is due based on their landlords actions. Landlords train their tenants to pay late by allowing it. Tenant problems come from lazy landlords that do not take their responsibilities seriously.
I begin my training during screening making it crystal clear that late payment is never tolerated. The first time a tenant pays late they receive a notice the next day. The cost to them is $190. The second time they get a written notice with a notification (tenant cost $190) that one more late and they will be evicted for consistent late payment. Any tenant that has paid late twice would not have their lease renewed.
Just because your state's L/T laws state something, your local Magistrate/Justice/Judge can intuit their own interpretation of the law. It's always best to check with the Magistrate that will be hearing your case--ask them directly what they consider proper service and the time frame of service they will accept.
Local justices can strike down late fees and interpret your lease as they please. Of course, you can always appeal their ruling/s, which will cost you far more time and money. Just follow their 'interpretation' of the law. That's the real world.
@Cody Plemmons I used this one as a template for my own notice. I should note, however, that I have never filed summary ejectment so I don't know if a judge will find it an acceptable notice. I used it b/c it seemed basic and straightforward enough.
@Patrick Menefee just be aware that some of the posts on here are not consistent with the NC Landlord and Tenant Act. @Oleg Kio had the best answer, just use a newer version of form 410-T. Every judge knows this format and using it makes your case easier in the event of tenant default. You can google it (NC form 410-t) if your broker or attorney doesn't have a copy. Then use the sheriff service for notification, since that method will always be accepted in all 100 NC counties. I have seen plenty of cases continued because the plaintiff (landlord) didn't have a signed green return receipt and didn't use the sheriff service. That just costs time, lost rent, and grief to the landlord. Not worth it for me.
I use the NC form 410-t for my leases, but for the 10 day notice are you saying the sheriffs office has to deliver this also or can this be delivered by the landlord and the eviction notice is delivered by the sherriff?
Thankfully it's been a while since I had to evict someone but if I remember correctly, you don't need 10 day notice if you use the standard lease. Lease states that the rent is due and expected without any notice, so you can file on day 6 without 10 day notice. Any notice that is required by court should be done by sheriff
Like Oleg said.... When you file the NC summary ejectment form with the clerk of court, you'll have the court date and time that you will put into the magistrate summons form for the sheriff's office. Depending on your county, dockets sometimes fill up if you file late on the 6th, so you may have an extra day or two until your court date compared to filing towards the middle of the month. Some counties will allow you to file the sheriff form at the small claims desk to save you a trip, some don't. Some counties take checks, some don't. I put some of these details in a post, it's in the link in my first post on this topic FWIW.
Hello, I found this thread and was wondering how fellow NC landlords were handling things with Covid. One tenant of mine needed until April 15 to pay rent (stimulus check), and he has yet to pay for May. He was also dealing with his wife in the hospital over a pregnancy and he lost work because of Covid. Also, courts are not doing eviction hearings until June 1. Although we had e-mail exchanges about his situation (he said he is trying and that he has some kind of job working from home), I have not officially sent him a 10-day notice but I am considering doing it this week. I do not think they will willingly move-out. Any thought or suggestions